In a recently released Notice of Apparent Liability (“NAL”), the FCC issued a fine totaling $8,000 against a New Mexico AM broadcaster for violating the FCC’s Emergency Alert System (“EAS”) rules. The NAL alleges that the broadcaster failed to properly maintain its EAS equipment, a violation of Section 11.35 of the FCC’s Rules.

During a June 2011 main studio inspection, an agent from the Enforcement Bureau’s San Diego Field Office observed that the station’s EAS equipment was not operational. According to the NAL, the Station’s EAS equipment had been damaged by vandalism six months prior to the inspection. In addition to the equipment failure, Station employees were unable to provide the required EAS documentation (i.e., logs or other EAS records) associated with the mandatory weekly and monthly tests required by Section 11.61 of the FCC’s Rules.

Inoperable EAS equipment is a violation of Section 11.35(a) of the Commission’s Rules, which mandates that broadcasters must ensure that the required EAS equipment is installed, maintained and monitored. Section 11.35(a) also requires EAS participants to log, among other things, instances when the station experiences technical issues during participation in the weekly or monthly EAS tests. Pursuant to Section 11.35(b), EAS participants must seek FCC approval if their EAS equipment will not be functioning for more than 60 days. The base fine for an EAS violation is $8,000. The FCC, stating that “EAS is critical to public safety,” levied the full fine against the broadcaster.

Late Filings and Unauthorized Operations Lead to $10,000 Forfeiture

The FCC recently issued a joint Memorandum Opinion and Order and NAL to the licensee of an AM station in South Carolina for several violations of the FCC’s Rules. The licensee was ultimately fined $10,000 for failing to file its license renewal application on time and for unauthorized operation of the station following the license’s expiration.

Section 73.3539(a) of the FCC’s Rules requires license renewal applications to be filed four months prior to the expiration date of the license. The AM station’s license was set to expire in December 2003, but no license renewal application was filed. The station licensee later explained that it did not file a renewal application because it did not realize the license had expired. In May of 2011, seven years later, the FCC notified the station that the station’s license had expired, its authority to operate had been terminated, and that its call letters had been deleted from the FCC’s database.

After receiving this letter, the station filed a late license renewal application and a subsequent request for Special Temporary Authority (“STA”) to operate the station until the license renewal application was granted. Because so much time had passed since the station failed to timely file its 2003 license renewal application, the deadline for the station’s 2011 license renewal application (for the 2011-2019 license term) also passed without the station filing a timely license renewal application. As a result, the FCC found the station liable for an additional violation of its license renewal filing obligations. The base fine for failing to file required forms is $3,000. Thus, the FCC found the station liable for a total of $6,000 relating to these two violations.

Further, the FCC found the licensee liable for violations of Section 301 of the Communications Act because the station continued operating for seven years after its license had expired. The base forfeiture for such a violation is $10,000, but the FCC lowered the proposed forfeiture to $4,000 because the station had previously been licensed.

In spite of the rule violations and $10,000 fine, the FCC decided to grant the station’s license renewal application, finding that the station’s violations did not evidence a “pattern of abuse.”FCC Fines Unresponsive Party $21,000 Above Base Fine

A recent NAL released by the Enforcement Bureau provides a reminder that regulatory ignorance is not bliss. According to the NAL, the Enforcement Bureau, as part of an investigation into billing practices, issued a Letter of Inquiry (“LOI”) to a provider of prepaid calling cards on July 15, 2011. The LOI mandated that a response be submitted by August 4, 2011.

The provider failed to respond to the LOI by the initial deadline. The Enforcement Bureau, via e-mail on August 29, 2011, provided an additional extension of time to respond until September 8, 2011. The extended deadline again came and went without action by the provider. As of December 9, 2011, the Enforcement Bureau had not received a response to its July 2011 LOI. Pursuant to Section 1.80 of the FCC’s Rules, the base fine for failure to respond to FCC correspondence is $4,000.

The NAL noted that the FCC’s authority under Sections 4(i), 218, and 403 of the Communications Act of 1934 “empowers it to compel carriers … to provide the information and documents sought by the Enforcement Bureau’s LOI,” and that failure to respond to an Enforcement Bureau request “constitutes a violation of a Commission order.” The Enforcement Bureau stated that the provider’s “egregious, intentional and continuous” misconduct warranted a $21,000 upward adjustment to the base $4,000 fine, for a total fine of $25,000.

In what now seems like ages ago, the FCC and FEMA conducted the first nationwide test of the Emergency Alert System back on November 9, 2011. While the FCC and FEMA are continuing to review and analyze what went right and what went wrong during the national test, EAS Participants should not forget that their work may not be done. As we discussed immediately following the test, the FCC has mandated that EAS Participants submit the full results of their test to the FCC, either online or on paper, no later than December 27, 2011.

I reported back in October that the FCC created three separate forms for purposes of reporting a station’s test results. Stations should have completed Form 1 prior to the test, providing background information regarding the station’s facilities and equipment, and Form 2 on or as close as possible to the November 9 test date, providing information on whether or not the station received the national test alert and whether the alert was passed along.

In Form 3, the FCC has asked for more detailed information on the success or failure of the test. We were the first to point out publicly that there is a conflict in dates between the FCC’s form page on the website which indicates that the deadline is December 24, and the FCC’s National EAS Test Public Notice which indicates that the deadline is December 27. However, the FCC’s filing rules and discussions we have had with FCC staff confirm that the official deadline is December 27.

So if you have not done so already, make sure to submit the required information about the success or failure of your EAS equipment during the national test prior to next week’s deadline.

At its October Open Meeting, the FCC announced that it was moving ahead on two proposals to “standardize” and “enhance” television stations’ public reporting regarding the programming they air, and their business and operational practices. The first of those items to be released related to the Online Public Inspection File, which we report on in detail here and here. The Further Notice of Proposed Rulemaking in that proceeding has already been published in the Federal Register and the first round of comments in that proceeding are due on December 22, 2011.

The second item, which deals with the new disclosure form to replace television stations’ current Quarterly Issues Programs Lists and the FCC’s prior failed attempt to standardize and enhance station disclosures on FCC Form 355, has now appeared in the Federal Register. We discuss this proposed form in detail here. The publication of this item establishes the deadline for comments on the new form, which are due on January 17, 2012, with Reply Comments due on January 30, 2012.

The FCC has moved swiftly in getting these items published, thereby commencing the public input process on these proposals, and has indicated that they are a high priority at the Commission. Broadcasters’ best opportunity to influence how these proposals take shape is now. As a result, stations should review the proposed form and our analysis of both it and the related Online Public File to understand the impact these new requirements could have on their operations.

We previously noted that the proposed form is highly duplicative of portions of the Online Public File proposal. Regardless of what information is collected, having to disclose it twice, in two different formats, is a burden on broadcasters that the FCC appears to have not acknowledged. In addition, the new form being put forth by the FCC for comment, far from merely standardizing the way programming information is disclosed, could well end up standardizing what programming is actually aired, intruding on licensee programming discretion.

Broadcasters that fail to participate in these proceedings do so at their own peril, as the resulting regulatory requirements could well be the proverbial lump of coal that TV broadcasters find in their stocking this year.

According to a recent Notice of Apparent Liability (“NAL”), agents at the FCC’s Norfolk Field Office received a complaint of an unlit tower from the Federal Aviation Administration (“FAA”). Two weeks later, agents from the Norfolk Field Office contacted the local Sheriff’s Office for a visual confirmation of the tower’s lighting status. A deputy indicated that all but one of the lights on the 700 foot tower were not functioning and that the only functioning light was located 100 feet from the ground.
Section 17.51 of the FCC’s Rules requires certain structures to install and maintain red obstruction lighting. These lights must be functional between sunset and sunrise. The base fine for failure to comply with lighting and painting regulations is $10,000. Sections 17.47, 17.48 and 17.49 require structure owners to 1) inspect all automatic or mechanical lighting control devices at least every three months, 2) notify the FAA immediately of tower lighting malfunctions or extinguishments, and 3) maintain logs detailing any malfunctions or extinguishments.
The Norfolk field agents conducted an onsite inspection of the tower almost one month after receiving notification of the complaint from the FAA. The tower owner’s contract engineer was present at the time of the onsite inspection. During that inspection, the agents confirmed that only one tower light was functioning and that the tower’s remote light monitoring system was also malfunctioning. The NAL indicated that the consulting engineer admitted that the monitoring system had notified the tower owner that the top beacon was not functioning only six days prior to the onsite inspection. The tower owner notified the FAA at that time. The engineer also stated that the tower owner did not maintain tower logs detailing regular tower and control device inspections or instances of malfunctions.

In light of these failures, and the period of time over which they occurred, the FCC assessed a fine of $10,000 to the tower owner.

Reporting Failures Result in Fines Totaling $13,000

The registrant of an antenna structure in California was recently found liable for $13,000 for violations related to the antenna structure’s red obstruction lighting and for failing to notify the FCC of the structure’s change in ownership.

In response to complaints that the structure’s obstruction lighting had failed, agents from the Los Angeles Field Office contacted the registrant of the structure. Section 303(q) of the Communications Act of 1934 and Section 17.51(a) of the FCC’s Rules require that antenna structures be painted with aviation orange and white and have red obstruction lighting indicating the top and midpoints of the structure. Upon inspection, however, the agent found that none of the structure’s lights were functioning between sunset and sunrise. The Enforcement Bureau subsequently issued a Letter of Inquiry. In response, the registrant admitted that the lights were not operational for a period of two months, and he was unsure if he had notified the Federal Aviation Administration at the time of the outage, as required by Section 17.48 of the FCC’s Rules. As noted above, the base forfeiture for failing to comply with the required lighting and painting standards is $10,000. Though the violation was “repeated” because the outage lasted two months, the FCC did not issue an upward adjustment of the penalty.
The FCC further found that the registrant had violated Section 17.57 of the FCC’s Rules, which requires that tower owners immediately notify the FCC of any changes in ownership. The registrant assumed ownership of the structure in April 2008, but did not update the ownership information filed with the FCC until January 2011, after being contacted by agents from the Enforcement Bureau. The base forfeiture for violating the rules pertaining to tower ownership notifications is $3,000. As a result, the FCC tacked on an additional $3,000 fine, resulting in a total proposed fine of $13,000 for the tower owner.

As the Thanskgiving Day tryptophan finally wears off, it’s important not to forget that December 1 is a busy filing day for television and radio broadcasters alike. Below is a brief summary of the FCC’s December 1 filing deadlines, along with links to previous posts describing the filing requirements in more detail.

FCC Form 317 DTV Ancillary/Supplementary Services Report

As we reported last week, commercial television stations must electronically file by December 1 FCC Form 317, the Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations, even if they have not received any income from ancillary or supplementary services.

FCC Form 323 Commercial Biennial Ownership Report

I wrote back in August that the FCC’s Media Bureau changed the commercial Form 323 filing deadline from November 1, 2011 to December 1, 2011. By December 1, all commercial radio, television, low power television and Class A television stations must electronically file their biennial ownership reports on FCC Form 323 and timely pay the required FCC filing fee.

FCC Form 323-E Non-Commercial Biennial Ownership Report

Noncommercial radio stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by December 1 their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

Annual EEO Public File Report

Station employment units that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must by December 1 place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC’s EEO Rule during the period December 1, 2010 through November 30, 2011.

Pre-filing License Renewal Announcements for Radio Stations

Full-power AM and FM radio broadcast stations licensed to communities in Arkansas, Louisiana and Mississippi must begin on December 1 to air their pre-filing license renewal announcements in accordance with the FCC’s regulations.

Post-filing License Renewal Announcements for Radio Stations

Full-power AM and FM radio broadcast stations licensed to communities in Alabama and Georgia must begin on December 1 to air their post-filing license renewal announcements in accordance with the FCC’s regulations. FM Translator stations must arrange for the required newspaper public notice of their license renewal application filing.

Renewal of Licenses for Radio Stations

Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in Alabama and Georgia must electronically file their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 by December 1, and timely pay their FCC filing fee.

December 1 represents an eventful filing day. Time for everyone to shrug off the Thanksgiving hangover and make sure your filings are prepared and filed on time.

The FCC has announced the comment and reply comment deadlines for its recently-announced Further Notice of Proposed Rulemaking (FNPRM), which proposes to replace nearly all of a television station’s paper public inspection file with a more expansive online file hosted by the FCC. Comments are due at the FCC by December 22, 2011, with Reply Comments due by January 6, 2012. In addition, the public can also submit comments to the Office of Management and Budget regarding the proposal’s impact under the Paperwork Reduction Act by January 23, 2012.

This is an important proceeding as it involves far more than simply moving public files online. The goal of this proceeding, and the separate proceeding also commenced recently to replace television station Quarterly Issues Programs Lists with a new form (which we discussed here) is to create fully searchable databases of uniform information about broadcast stations and their programming that researchers, advocates and policy makers can cite in support of a particular regulatory theory, proposal, or complaint. Beyond the burden on TV stations in populating this database, broadcasters are justifiably leery of the long term impact on licensee discretion.

Historically, there has been a strong correlation between the FCC gathering information on the amount of programming being aired of a particular type, and demanding that more (or sometimes less) of it be aired in the future. Based upon this history, broadcasters can be forgiven if they feel a First Amendment chill down their collective spine when the FCC seeks more information about their programming decisions, and worse yet, declares that such information should be instantly available to anyone with an Internet connection.

As we have seen in the indecency context where the FCC has been buried by email complaints, some against stations that never actually aired the program at issue but which were incorrectly reported on the Internet as having aired it, making station information available by Internet risks drowning out the voices of local viewers and listeners with the shrill cries of distant agitators.

More to the point, given the power of the FCC over broadcasters’ license renewals, and the stress and expense of defending against even baseless complaints at the FCC, the path of least resistance for a broadcaster is to succumb to the pressure and program in a way that makes the government happy. The government may try to exert this pressure subtly (usually not), but like water passing over a stone, it inexorably wears the broadcaster down. The details of the FNPRM provide an indication of how much regulatory water the FCC is proposing to send broadcasters’ way.

In adopting these proposals as mere disclosure requirements, the FCC can implicitly denote what it considers to be a suspect program or practice without having to adopt a rule specifically prohibiting that particular program/practice and facing judicial scrutiny of the prohibition. Taken together, the online public file and program reporting proposals appear to be an exercise in “regulation by raised eyebrow,” with the modern twist of enlisting the Internet community to crowdsource station monitoring and complaints to ensure adequate pressure on broadcasters to get with the program.

Broadcasters as a whole recognize, and are dedicated to, meeting the needs of their local community. The FNPRM’s suggestion that they should also meet the needs of the global Internet community merely distracts from that fundamental mission. The reason public inspection files are so rarely visited by the public is that local viewers and listeners are already very knowledgeable about their local stations’ service to their community. All they have to do is turn on their TV or radio to find out more. They have traditionally shown little need for, or interest in, the public file.

Contributing to that disinterest is the anachronistic nature of the file itself. For example, what is the utility of a contour map to the average viewer/listener when TV stations are carried throughout the DMA by cable, satellite, translators and boosters, and radio stations are streamed throughout their market and beyond? While a good case could be made for scaling back the public file rule, the FNPRM’s effort to sprint in the opposite direction is difficult to fathom, particularly given how strained station resources already are in the current economy.

All television broadcasters (and frankly, radio broadcasters with an eye to the future) should carefully consider how the changes proposed in the FNPRM would affect their ability to function and serve their communities, and ensure that they let the FCC know just what that impact would be.

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2011.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2011.

Ancillary or supplementary services are all services provided on the portion of a station’s digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”

If a station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2011, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC’s lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC’s website. The fee amount must also be submitted by the December 1, 2011 due date.

As promised at its last Open Meeting, the FCC has released a Notice of Inquiry focused on replacing television stations’ Quarterly Issues/Programs Lists with an online, standardized and searchable programming disclosure form. The effort seeks, depending on your point of view, to reform or to reinstate the failed FCC Form 355 that the FCC adopted in 2007, but which never went into use because of numerous legal challenges attacking the form’s onerous reporting requirements and overt programming mandates.

While the FCC claims that it is starting anew, as opposed to merely revising the old Form 355, it is not starting from scratch. Instead, the FCC punts on crafting a new form and asks whether the form that the Public Interest, Public Airwaves Coalition (“PIPAC”) has presented to the FCC will do the trick. That form would collect information regarding a television station’s programming in the following categories:

Local News: “programming that is locally produced and reports on issues about, or pertaining to, a licensee’s community of license”;

Local Civic/Governmental Affairs: “broadcasts of interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups”;

Local Electoral Affairs: “candidate-centered discourse focusing on the local, state and United States Congressional races for offices to be elected by a constituency within the licensee’s broadcast area”;

Closed Captioning and Video Description: whether programming reported on the form is captioned and what type of captioning is used, as well as ALL programming that is not captioned and the basis for its exemption; and

Emergency Accessibility Complaints: the number of complaints a station receives during the reporting period that its emergency programming is not accessible to those with disabilities.

The FCC asks for comment on a wide range of issues relating to these categories, such as whether broadcasters should report on individual segments within programs or only on entire programs, what constitutes a segment, and whether any additional categories should be added. The FCC also asks “what is an issue?,” which of course goes to the very heart of a licensee’s First Amendment discretion to determine what qualifies as suitable programming for its audience. It was the government’s concern about stepping on broadcasters’ First Amendment rights in the first place that led to the adoption of the more flexible Quarterly Issues/Programs List the FCC now seeks to replace.

As a replacement for the Quarterly Issues/Programs List, PIPAC is urging the FCC to randomly select dates during each quarter, and then require broadcasters to compile information regarding the programming aired in the above categories on those dates. As a practical matter, however, this would encourage broadcasters to focus their resources on small and numerous news stories over major investigative efforts, since a station that airs fewer but more complex and thoroughly investigated news stories runs the risk of getting no FCC credit if such stories don’t happen to fall on one of the “sample” days chosen by the FCC.

With respect to local election coverage, PIPAC proposes that broadcasters report all such programming aired during the lowest unit rate window (45 days before a primary and 60 days before a general election). Alternatively, the FCC asks whether it should use a composite week or two actual weeks as the appropriate reporting period and how it should give notice to broadcasters of its random selections. One proposal — that the FCC notify broadcasters within a day or two of the date it randomly chooses — would have the FCC perpetually announcing dates for which broadcasters must preserve information about election programming aired.

Despite the FCC proposing that the online disclosure form be kept as part of a television station’s new online public inspection file, the PIPAC form requests a great deal of information that would be entirely duplicative of that public file. This includes having a link to the online public inspection file (in which the reporting form would be found in the first place), as well as links to the station’s most recent ownership report and children’s television programming report (each of which the FCC has proposed to include as part of the online public file), station contact information (which the FCC has already proposed be kept as part of the online public file), information about whether reported programs aired as part of a local marketing or other agreement or required sponsorship identification information (which information is already included in the online public file proposal), as well as such basic information as whether the station is commercial or noncommercial, the DMA in which it is located, and its network affiliation.

PIPAC created its form before the FCC released the proposal for a new online public file, and it is readily apparent that the PIPAC form is in many ways redundant with the FCC’s proposal. Oddly, however, the FCC seems to be considering the PIPAC form as a complement to an online public file, rather than as merely a duplicative addition to that file. As we noted earlier, there is a worrisome undercurrent in these proceedings that the FCC’s focus is on facilitating the efforts of distant policy advocates and academicians to hold a broadcaster “accountable” for its programming choices rather than on ensuring that stations serve the needs of their local audiences.

Organizations that have to be told online what a station’s affiliation or television market is, or whether it operates commercially or noncommercially, obviously are in a poor position to know the needs and interests of that station’s local community, much less whether the station is meeting those needs and interests. Instead, these proposed requirements seem aimed at merely providing a mechanism for pressuring stations to air more of a particular type of programming favored by the government or by a distant advocacy group. As Commissioner McDowell pointed out today in his concurring statement, it appears that stations’ local communities will benefit little from these proposed new requirements.

In its various incarnations — CONELRAD, the Emergency Broadcast System, the Emergency Alert System, and soon, the EAS CAP system — America’s public warning system has much in common with a vintage automobile that has been taken out of the garage only for short trips. In those short trips (mostly state and local tests and alerts), it has performed adequately, but until this week’s national test, we never had a chance to take it out on the open road and see what it could really do.

Now that the first national EAS test is behind us, we know that the system isn’t broken, but that it definitely will benefit from this breaking in process. That process, which necessarily includes extensive analysis of this week’s test, will reveal numerous ways in which the system can be tweaked for better and more reliable performance under open road conditions. The basic system appears to have run fine; the message got out to the public (though obviously better in some locations than others).

Unlike the relative simplicity of an automobile, however, the EAS system is one of the largest pieces of machinery in the world, having immense geographic scope and a staggering number of components. Getting all of those components to function smoothly together is a complex task that requires much more effort than the typical automotive tune up. Its performance grows more impressive when you remember that most of those components are independently (and privately) owned and operated, and are not supported by federal funding. The EAS system is perhaps the ultimate public-private partnership.

While it is too early to provide a detailed assessment of the areas where the functioning of the system went astray, as we indicated previously, the purpose of the test was to help FEMA, the FCC, and EAS Participants determine the reliability of the EAS system and where it needs improvement, and the test certainly accomplished that. There were a number of issues uncovered with regard to cable and satellite alerts, as well as individual radio and television stations in Oregon and a number of other locations apparently not receiving the test, excessive background audio noise in the test message, some television stations receiving video but no audio, and header codes apparently being sent twice. While the press has understandably focused on areas where problems arose, initial reports seem to indicate that the alert was heard in the vast majority of locations, and that the next area to focus on is ensuring that the content of the alert itself is clear and understandable to the public.

According to the FCC, it and FEMA will now use the results of the test “to identify gaps and generate a comprehensive set of data to help strengthen our ability to communicate during real emergencies. Based on preliminary data, media outlets in large portions of the country successfully received the test message, but it wasn’t received by some viewers or listeners. We are currently in the process of collecting and analyzing data, and will reach a conclusion when that process is complete.”

EAS Participants should remember that just because the national test is over, their work is not done. As we discussed in October, the FCC is encouraging online reporting of each Participant’s test results as soon as possible and has mandated that the information be submitted to the FCC no later than December 27, 2011 (either online or on paper).

In the meantime, that noise you hear coming from the nation’s garage will be thousands of EAS Participants, EAS equipment manufacturers, and government officials tuning and tweaking the EAS system for its next run on the open road.

The Commission’s Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 Initiates a Two-Year Deadline for Providers of Advanced Communications Services and Manufacturers of Equipment Used in Advanced Communications Services to Comply with Disabilities Access Requirements.

The Federal Communications Commission (the “Commission”) recently adopted a Report and Order (“R&O”) and Further Notice of Proposed Rulemaking (“FNPRM”) implementing Section 104 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “CVAA”), codified as Sections 716, 717 and 718 of the Communications Act of 1934, as amended (the “Act”). The purpose of the CVAA is to “ensure that people with disabilities have access to the incredible and innovative communications technologies of the 21st century.”

Prior to the passage of the CVAA, and pursuant to Section 255 of the Act, the Commission imposed disabilities access requirements on manufacturers of telecommunications equipment (including answering machines, pagers and telephones) and providers of telecommunications services. In 2007, the Section 255 requirements were extended to providers of interconnected VoIP services and manufacturers of VoIP equipment. The CVAA expands the Commission’s regulatory authority to historically unregulated providers of advanced communications services (“ACS”) and manufacturers of equipment used for ACS (collectively the “Covered Entities”) and codifies the requirement as it applies to interconnected VoIP.

Interconnected VoIP: a service that (1) enables real-time, two-way voice communications; (2) requires a broadband connection from the user’s location; (3) requires Internet protocol-compatible customer premises equipment (“CPE”); and (4) permits users generally to receive calls that originate on the public switched telephone network (“PSTN”) and to terminate calls to the PSTN.

Noninterconnected VoIP: a service that (i) enables real-time voice communications that originate from or terminate to the user’s location using Internet protocol or any successor protocol; and (ii) requires Internet protocol compatible customer premises equipment” and “does not include any service that is an interconnected VoIP service.

Electronic Messaging Service: “means a service that provides real-time or nearreal-time non-voice messages in text form between individuals over communications networks. This service does not include interactions that include only one individual (human to machine or machine to human communications).

Interoperable Video Conferencing Services: services that provide real-time video communications, including audio, between two or more users. This service does not include video mail. The Commission has sought additional comment, pursuant to the Further Notice of Proposed Rulemaking, regarding the definition and application of “interoperable”.

The Commission clarified that the regulations implemented pursuant to the CVAA “do not apply to any telecommunications and interconnected VoIP products and services offered as of October 7, 2010.” The R&O also indicates that any regulated equipment or service offered after October 7, 2010 may be governed by both Sections 255 and 716.

The CVAA established, among other things, a phased compliance timeline due to the financial and technical burdens associated with developing and implementing technological changes required by the CVAA. Covered Entities must comply with Sections 716 and 717 within one year of the effective date. Section 718 compliance must be achieved within two years of the effective date or no later than October 8, 2013. The CVAA also includes long-term reporting obligations, enforcement procedures, limitations on liability for violations and finite compliance deadlines. The Commission decided that the rules, as implemented, would not include any safe harbors or technical standards at this time. Finally, the Commission determined that when implementing the CVAA, its rules should include opportunities for waivers and self-executing exemptions.